By Min Lee
Law Bulletin
SPRINGFIELD-
A downstate attorney asked the Illinois Supreme Court to restore a
railroad conductor's full compensation for a work-related accident, in a
case testing the bounds of contributory negligence.
In a
petition for leave to appeal filed this week, Wood River attorney Gail
G. Renshaw argued that by throwing an unlubricated switch with extra
force, her client, Ricky D. Foutch, was doing his job and not acting
carelessly.
Renshaw made
a distinction between contributory negligence and assumption of risk.
Contributory negligence is A a careless act or omission on the
plaintiff's part tending to add new dangers to conditions that the
employer negligently created or permitted to exist, she said.
However,
Renshaw said assumption of risk entails A an employee's voluntary,
knowledgeable acceptance of dangerous conditions that is necessary for
him to perform his duties.
The
defendant, Missouri Pacific Railroad Co, argued that Foutch used
excessive force to throw the switch and, therefore, was partly
responsible for his own injury.
But Renshaw
said her client is required as part of his duties to throw the many
unlubricated switches in the East St. Louis Yard, even if it requires
extra force.
A That is
the classic assumption of risk situation, she argued.
And, Renshaw
said, the railroad company did not meet the necessary burden of proof
for a jury verdict on contributory negligence by merely trying to
discredit Foutch's testimony.
A Where
there is nothing other than the disbelief of plaintiff's testimony, it
is for the court to decide the contributory negligence as a matter of
law, because the burden of proof is on the defendant; disbelief of
plaintiff does not satisfy that burden, she wrote, citing Luther v
Norfolk and Western Railway Co., 272 Ill. App.3d 16, 649 N.E.2d 1000
(5th Dist. 1995)
No one
witnessed the September 1999 accident.
Foutch's
injury required surgical removal of discs in his back and neck. After
surgery, a vocational rehabilitation specialist determined Foutch could
not return to his job.
Upon
inspection, an expert witness retained by Foutch concluded that the
switch he was throwing was not properly maintained.
Foutch sued
for damages under the Federal Employer's Liability Act. A St. Clair
County jury found in favor of the injured worker and awarded him
$1,323,250 in damages. But the jury also found Foutch 38% negligent and
reduced the award by $500,000.
Foutch then
filed a post-trial motion asking the court to set aside the finding of
contributory negligence. St. Clair County Circuit Judge Roger M.
Scrivner granted the motion and restored the full award. But a panel of
the 5th District Appellate Court reversed Scrivner and
reduced the award again.
The case is
Ricky D. Foutch v. Missouri Pacific Railroad Company d/b/a Union Pacific
Railroad Company, No 94042.
